Sunday, January 31, 2016

AIIFL's Taxation Law Research Programme (TLRP) has recently launched a new tax commentary series known as "TLRP Tax Comments" or TTC. The TTC will provide an online publication platform for stimulating tax law & policy articles and notes. New publications will be added on an ad hoc basis and will be emailed to recipients on the TLRP email list. TLRP welcomes submissions for possible publication at TTC. Submissions must be written in English and address a significant aspect of tax law and/or tax policy. While most TTC are expected to focus on the Hong Kong or Chinese mainland systems, international tax comments especially where there is a Greater China connection are also welcome.

The first TTC article is by Ms Agnes Lee Sui Ping who is a graduate of our LLM (Corporate and Financial Law) programme, graduating with distinction in 2013.

Abstract: Whether the legal reform of the last 30 years has fundamentally changed the role of law in China and led her towards a rule of law regime is contentious. Given the close relationship between taxation and the rule-of-law development and the crucial position captured by the Enterprise Income Tax law in China’s developing tax regime, this article has specifically selected the making of the Enterprise Income Tax law as the unit of analysis in assessing whether the making of China’s tax law complies with the rule of law principles. This article also includes an extensive set of tables, listing relevant provisions which were reviewed in the course of its writing and a full bibliography.

WeChat has become an extremely popular way for people in the mainland to communicate, and people (and companies) in Hong Kong use it to reach out to mainland friends and the mainland market.

A small reminder to those whose names are registered with WeChat: there have been a number of reported criminal cases in which heads of WeChat groups have been prosecuted, although none so far involve people from Hong Kong or people posting on WeChat from Hong Kong. Setting aside the complicated questions of cross-border criminal liability – which require close examination – let’s look at what is set out in the mainland Criminal Law and some recent court reports.

Users posting on WeChat have been prosecuted under various Criminal Law articles. Some heading a WeChat group have been prosecuted under Article 364 of the Criminal Law, and its related judicial interpretation by the Supreme People’s Court and Procuratorate, punishing the dissemination of obscene materials... Click here to read the article.

Wechat, as most people with an interest in China know, has become the preferred form of social media in China. The legal community in China has taken to it too.

Some are official accounts of government entities, including the courts and others are public accounts (公众账号) established by companies, law firms, individuals, and other organizations. Ir Each has its benefits for the user located outside of China.

To access these public accounts, it does not matter where in the world you are located, but you need a smart phone to install the Wechat app. The accounts can be accessed through “search official accounts” or “Add contacts” and typing in either the Wechat ID or the name of the account. The accounts can also be accessed through computer or table as well, by searching for the account in question.

The official government accounts enable the user to keep current on the issues and latest government position in that area of law–new policy, new legislation, and new reforms. The Supreme People’s Court, for example, has one, as does the Supreme People’s Procuratorate, as well as their local counterparts.

Another category is the less official public accounts. Some are affiliated with official organizations, while others are not, while others are in a grey area. The writing tends to be aimed at the professional, with less bureaucratic language. Some accounts are aimed at practicing lawyers, more focused on civil and commercial law than criminal law or administrative law, but both can be found. Some accounts publish writings by the account holder, while others accept articles submitted by followers. One very popular type of article is one that reviews the law and cases in a particular area of law... Click here to read the article. Susan Finder is a Visiting Fellow of the Centre for Chinese Law.

Tuesday, January 26, 2016

The 240-page Equal Opportunities Commission's Report on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status was published today. It is the first comprehensive study of its kind. The Study concludes "that there is clear, majority public support for legislation against
discrimination on the grounds of sexual orientation, gender identity and particularly intersex
status. It is now for the Hong Kong Government to decide how to take this receptiveness
forward in order to create a friendly environment for LGBTI people. By taking steps to
introduce comprehensive anti-discrimination legislation on the grounds of sexual orientation,
gender identity and intersex status, there is an opportunity for Hong Kong to become the
leading jurisdiction on LGBTI equality in Asia." We are pleased to see that the Study cites and relies upon the Centre for Comparative and Public Law's 2014 study, led by Kelley Loper, that finds public support for gay and lesbian couples' rights in Hong Kong.

In the weeks ahead of Taiwan’s Jan. 16 elections, Yueng Wen estimates that “nearly half” his student friends went from Hong Kong to Taipei. They watched, participated, tweeted and got to know every detail of the voting, which saw Taiwanese elect their first female president, Tsai Ing-wen, and deliver a knockout blow to the long-ruling Nationalist Party (KMT).

Mr. Wen, a slender graduate student at Hong Kong University, took part in mass protests in 2014 to demand free and fair elections in this former British colony. Like many residents, he worries that Hong Kong, which reverted to Chinese rule in 1997, is losing its distinct identity and freedoms as Beijing asserts tighter control.

“We really appreciate the Taiwan elections,” Wen says. “I am skeptical of both political camps there and it would take me 30 minutes to tell you why. But what we appreciate is choice. Taiwanese have a real choice, and we in Hong Kong do not.”

For years, Hong Kong and Taiwan have lived in largely separate realms and have not paid much attention to each other. Beijing has not encouraged any official ties between the two entities, one of which it rules under special laws of autonomy (Hong Kong), and one of which it claims (Taiwan). Hong Kong chief executives do not visit Taiwan; official traffic from Taiwan to Hong Kong has mostly included city mayors.

Yet in the past three years, youth in Hong Kong and Taiwan are being drawn together, online and in person, by shared interests that revolve around Chinese politics and their own future. They are meeting, holding conferences, and for the first time sharing insights into how their own leaders are dealing with superpower China.

In Hong Kong last weekend one of the most-read tweets came from Taiwanese rocker-turned-politician Freddy Lim: “Don’t let Taiwan’s future be like Hong Kong’s present.”

Mr. Lim’s politics emerged out of Taiwan’s student-led “Sunflower movement” that staged a weeks-long sit-in in 2014 of government buildings in Taipei to protest trade deals with China that the KMT was trying to enact in ways that students said lacked transparency. His political party, formed in November, now holds five seats in that legislature.

In Hong Kong, Taiwan’s elections came amid fears over the apparent abduction of five members of a publishing firm and bookstore that specializes in gossipy accounts of Chinese politics. One was later paraded on Chinese TV making a confession. The Global Times, a hawkish Chinese newspaper, commented that it was “not only reasonable but legal” to investigate the company because it had undermined China’s “rule of law system.”

'One country, two systems'

The "one country two systems" formula by which China has ruled Hong Kong since 1997 was initially conceived as the formula by which China would someday govern Taiwan, according to Hong Kong University law professor Michael Davis.

“China’s heavy handed policies – the abduction of the bookseller is one example – are driving Hong Kong and Taiwan into each other’s arms,” says Prof. Davis, who is active in human rights and democracy groups. “For Taiwanese it says, look at what “one country two systems” actually looks like. We don’t want any part of it.”

For the democratic camp in Hong Kong that seeks freer elections including a direct vote for its leader, Taiwan’s orderly and peaceful election serves as a counter to the Chinese Communist Party’s oft-stated message that democracy breeds instability... Click here to read the full article.

At least HK$29 million was spent on external counsel to handle judicial reviews last year, with the number of applications for leave to apply for reviews increasing 43 percent over the past five years.

There were 259 applications, compared with 168 in 2014 and 103 in 2011, Secretary for Home Affairs Lau Kong- wah said. From 2011 to 2014, the number of leave applications granted increased from 51 to 84, Lau said in a written reply to lawmaker Ng Leung-sing yesterday.

For applications filed in 2015, 48 had been granted so far and 155 or 60 percent were pending determination. Lau said HK$28.94 million was spent on external counsel last year, compared to HK$40.88 million in 2011. He gave the example of HK$10.49 million expenditure in the review regarding the Environmental Impact Assessment reports of the Hong Kong-Zhuhai- Macau Bridge.

Eric Cheung Tat-ming, principal lecturer and director of clinical legal education at the University of Hong Kong Faculty of Law, said arguing that a judicial review is a waste of money is illogical, as all legal procedures come with a price in society under rule of law.

"There must be some people wishing to abuse a system in a civilized society, but that does not mean we have to deny the whole system altogether, rather we should focus on whether the procedures can prevent abuses. There is a high threshold for application of judicial reviews in Hong Kong."

Stephen Hung Wan-shun, president of the Law Society, said the legal cost of judicial review cases is not necessarily higher than others. Hung said as far as he knows, most applicants in judicial review cases have applied for legal aid and a discounted rate is charged under the legal aid scheme.

Abstract: This article critically reviews how the Chinese legislation and courts handle the conflict between the right to privacy and freedom of information. It summarises inadequacies in the protection of privacy provided under an uncoordinated body of legislation, and highlights the gaps concerning the privacy exemption to disclosure of government information left to be filled by the courts. By analysing a representative sample of cases, it evaluates the judicial approaches to balancing privacy and public interest in transparency on several subject matters. The article finds that the courts have recognised a wider scope of privacy in the FOI context than what is usually recognised under the civil law doctrine, and have often undervalued or neglected the public interest in promoting government accountability through transparency. It argues that these approaches risk condoning the misuse of privacy to cover maladministration, and can hardly redress the weak legislative protection of privacy from government intrusion in the non-FOI context.

Thursday, January 21, 2016

The Honourable Antonin Scalia of the US Supreme Court and Professor Bryan Garner will be speaking at HKU Faculty of Law on Tuesday, 2 February 2016, 6 pm, on their new book, Reading Law: The Interpretation of Legal Texts. Click here to register.

Wednesday, January 20, 2016

On 18 January 2016, The Zubin Foundation organised a Consul General Roundtable to discuss the status of ethnic minorities in Hong Kong with Consul Generals and their colleagues from Great Britain, Pakistan, India and Philippines and invited Puja Kapai, Director of the Centre for Comparative and Public Law to share her work and views. The British Consul General Caroline Wilson hosted the CG Roundtable at her residence. The meeting raised awareness of the plight of ethnic minorities in Hong Kong and this led to a constructive dialogue, facilitated by Shalini Mahtani, Co-founder of The Zubin Foundation, on how Hong Kong can learn from and share experiences with overseas countries. Amongst the topics discussed was the terminology used to define "ethnic minorities”, how to empower ethnic minority women and the need for wider engagement of different stakeholders in addressing these issues in Hong Kong.

Puja has also been invited by Chief Secretary Carrie Lam to present her findings and recommendations from her recent work on The Status of Ethnic Minorities in Hong Kong 1997-2014 to the Special Needs Taskforce of the Commission on Poverty on 20 January 2016. Click here to learn more about the "The Status of Ethnic Minorities in Hong Kong 1997-2014” Report.

Former and incumbent chief justices of the Court of Final Appeal have acknowledged that judicial reviews are the key to good governance, and the chairperson of the Bar Association has also asserted that there is no sign whatsoever our judicial review system has been abused.

Despite this, Chief Executive Leung Chun-ying has stubbornly insisted that many judicial reviews filed by members of the public in the past were politically motivated and that they were aimed at sabotaging key government-backed infrastructure projects.

What worries me here most is not Leung’s hardline stance on judicial reviews as a whole, but his twisted understanding of the rule of law and his complete disdain for the right of the public to exercise oversight powers on government actions through proper and rightful judicial procedures.

To make things worse, Leung’s opinion on judicial reviews is also out of sync with the view of the majority of the people of Hong Kong. According to the findings of a large-scale survey conducted by my research team last year, our citizens have over the past decade moved dramatically toward acceptance of judicial reviews.

The percentage of people who were in favor of judicial reviews rose to 67.3 percent last year from 30.3 percent in 2006.

There are a few reasons that can explain the significant rise in public support for judicial review:

1. The existing mechanism and channels of the government and the legislature to handle public complaints have proved inadequate for addressing the rising public grievances and social conflicts in recent years. Hence, the public has no choice but to turn to the court for help by means of judicial review.

2. Extensive media coverage of a number of high-profile judicial review cases has raised public awareness about the nature and positive impact of the legal route for the defense of civil rights.

3. The impartiality of the court in handling the cases has enhanced public recognition of judicial reviews as a rightful way to blow the whistle on unjust government measures or decisions.

4. Under most circumstances the government departments which lose cases would act in line with court rulings and re-examine or even revoke their policies in question, indicating that judicial review is an effective means through which the public can monitor and oversee government actions.

Our survey also shows that the more educated people are, the more in favour they are of judicial reviews.

OVERVIEW: The Legal Scholarship Workshop @ HKU (LSW@HKU) offers a unique forum for current doctoral candidates in law to present their work in a focused workshop setting that aims to approach legal scholarship holistically. In addition to the traditional emphasis on the paper’s content and argument, the LSW@HKU is also oriented towards academic training in preparation for the academic job market. Thus, presenters will receive both substantive comments on the paper and stylistic feedback on the presentation, and along the way educate ourselves about what makes a successful paper topic, paper, and presentation.

FORMAT: The two-day workshop will host a total of not more than 8 presenters. Each presenter will be allocated an exclusive 90-minute session (i.e., no panel format and no concurrent sessions) for presentation, substantive Q&A and stylistic feedback. Each presenter can expect an earnest discussion on both substance and style from the workshop participants. The workshop participants will primarily include research postgraduate students from the University of Hong Kong led by the hosting faculty member, invited faculty members whose expertise coincide with the presented paper, and invited research postgraduate students from other institutions.

The workshop will include papers from all areas of law, with no restrictions on jurisdiction and methodology. There is no strict limitation on paper length, though papers whose format and length are meant for either an one-hour workshop discussion or an one-hour job talk presentation are preferred.

Presenters and participants must commit to attend the entire Workshop, including reading the presented papers of all presenters prior to the session.

QUALIFICATIONS: current postgraduate students enrolled in a doctoral program in law (e.g., PhD or JSD, but excluding JD) in any law school around the world. Recently graduated doctoral candidates who has not obtained a tenure-track academic position may also apply.

FINANCIAL SUPPORT: There is no conference registration fees. In addition, the University of Hong Kong Faculty of Law will provide each presenter with travel reimbursement of up to HK$8000 (approx USD 1000) for return economy airfare from either the presenter’s academic institution or home country, and accommodation reimbursement of up to HK$3000 (approx USD 375) for three night stay in Hong Kong.

PAPER SUBMISSION PROCEDURE: To apply, send a paper or abstract, together with a CV and a cover letter stating the intended format/purpose of the paper to Jianlin Chen (jianlin@hku.hk) by 6 March 2016. Decisions will be made and communicated to applicants no later than 20 March 2016. The finalized paper to be presented is due by 8 May 2016 for distribution two weeks before the workshop.

PARTICIPANTS APPLICATION PROCEDURE: Postgraduate students may also apply to join the workshop as invited participants (i.e., no paper presentation). There is no conference registration fees for invited participants. Constraints of financial resources prevent travel reimbursement for invited participants, but meals and tea will be provided for all invited participants. This option is particularly suitable for postgraduate students who have just started their program and/or who happens to be in the vicinity of Hong Kong at the time of the workshop. To apply, send a CV and a cover letter stating the intended purpose of participation to Jianlin Chen (jianlin@hku.hk) by Mar. 6, 2016. Decisions will be made and communicated to applicants no later than Mar. 20, 2016. Applicants who are applying for paper presentation may simply include in their cover letter whether they would be interested to be considered as invited participants, which would be independently considered without any prejudice or preference in relation to the selection of presenters.

Many feel “one country, two systems” has suffered a serious blow from the mysterious circumstances of Lee Bo’s case, but it is too soon to conclude that the Basic Law has been violated.

If Lee crossed the border voluntarily and on his own, there would be no Basic Law issue. If private individuals unconnected to the mainland government were involved in forcing or persuading Lee to cross the border then, again, it is difficult to see this as a constitutional crisis, even though such individuals may have committed ordinary crimes.

There are a number of indications, however, that mainland officials were implicated in Lee’s entry. First there are Lee’s statements that he is “assisting an investigation” on the mainland. The nature of the books sold by Lee’s bookstore, coupled with the disappearances of his four associates, suggest a criminal investigation into offences of spreading rumours or slander to subvert state power or other national security offences.

Then there was the entry itself without the usual immigration clearances, suggesting official intervention. Finally, there is the unexplained need for Lee and his associates to remain on the mainland indefinitely if the “investigation” relates only to their associate Gui Minhai’s alleged case of vehicle homicide.

Even if mainland officials were involved, this does not necessarily mean the Basic Law was breached because there are grey areas when it comes to cross-border criminal investigations.

Certainly an abduction and forced rendition by mainland officials would constitute a serious infringement of the “one country, two systems” principle, but there are multiple ways to cause someone to cross the border. A chat in acha chaan teng, a phone call or a text message may be all that is needed to incite a person to make the trip... Click here to read the full article.

A person on a suspended jail term on the mainland cannot leave the country without official permission and authorities would not only keep a close watch on anyone fleeing but make a real effort to track them down, say legal experts. Once the law caught up with the offender, he would have to serve his sentence in prison.

This was why legal eagles and observers said they found it mystifying, and unconvincing, that Gui Minhai had eluded arrest for more than 12 years and decided to turn himself only now and – of all places – while in a foreign land.

Gui – one of the five missing shareholders and staff of publishing house Mighty Current which is linked to Causeway Bay Books – disappeared in mid-October after he was last seen at his apartment in the seaside town of Pattaya in Thailand.

On Sunday night, he appeared in a recorded interview broadcast by China Central Television, in which he said he had surrendered out of guilt for killing a 23-year-old student while drink-driving in Ningbo, Zhejiang province, in 2004. The confession contrasted starkly with the widely held suspicion that he was abducted by mainland law enforcement agencies in Thailand for selling books that are banned by China.

Professor Fu Hualing, a legal expert on the mainland criminal justice system, said he found it “totally illogical” for Gui to turn himself in now, after being on the run for so long.

“It is very shocking that after so many years Gui voluntarily went back,” said Fu. “A person, after so many years, suddenly finds his conscience and wants to return. What I can say is we have an official story but what else … is anybody’s guess.”

Fu said the personal freedom of people on a suspended prison term would be curtailed and they could not leave the country lawfully without official permission. Should the person violate the condition, as in Gui’s alleged case, he or she would be placed on the wanted list immediately and would have to serve the original sentence in jail... Click here to read the full article.

Sandwiched between a pharmacy and a discount clothing store in Hong Kong’s Causeway Bay neighborhood is a narrow staircase leading to a shuttered bookshop that has become a symbol of the fears of China’s encroachment in the former British colony.

Causeway Bay Books is one of the city’s best known “upstairs bookshops,” which sell titles such as “Overseas Mistresses of the Chinese Communist Party,” and “Secrets of Wives of CCP Officials” to mainland tourists hungry for the salacious and often thinly sourced tales about the alleged peccadilloes of their leaders. Outside hangs a sign in Chinese warning would-be customers to “watch out for police.”

The store, located in the shadows of one the world’s priciest shopping districts, has been shut since late December when its owner Lee Bo vanished from the city. With Hong Kong authorities pressing for information, Chinese police confirmed Jan. 18 that Lee was in the mainland, without explaining how the bookseller got across the border without the required travel permit or the knowledge of Hong Kong immigration.

“A disappearance off the streets raises questions in ordinary people’s minds about the future of Hong Kong and whether its distinctive qualities with which most Hong Kong people identify will be maintained,” said Michael Davis, a Hong Kong University law professor... Click here to read the full article.

Benny Tai has published a three-volume work in Chinese on the future of Hong Kong's constitutionalism.

1. The Future of Hong Kong’s Constitutionalism Part I: The Future of the Rule of Law (Hong Kong: Step Forward Multi Media Co Ltd., 2015)(《香港憲政的未來系列之一：法治的未來》，進一步多媒體有限公司，香港，2015 年). This book features articles analysing the relationship between civil disobedience and the maintenance of the rule of law in Hong Kong.

2. The Future of Hong Kong’s Constitutionalism Part II: The Future of Democracy (Hong Kong: Step Forward Multi Media Co Ltd., 2015)(《香港憲政的未來系列之一：民主的未來》，進一步多媒體有限公司，香港，2015 年). This book features articles analysing the future direction of Hong Kong’s democratic development after the Umbrella Movement.

3. The Future of Hong Kong’s Constitutionalism Part III: The Future of “Two Systems” and “One Country” (Hong Kong: Step Forward Multi Media Co Ltd., 2015)(《香港憲政的未來系列之一：「兩制」與「一國」的未來》，進一步多媒體有限公司，香港，2015 年). This book features articles analysing the conflict between “One Country” and “Two Systems” in light of the political development in Mainland China.

Sunday, January 17, 2016

Simon Young asked me to write about my experience as a PhD student in the Department of Law, presumably because I’m really old and an account of conditions at the time, though of no or little relevance nowadays, might be of some historical interest.

I arrived in Hong Kong in September 1970 to take up a Commonwealth scholarship to engage in postgraduate study. There weren’t too many applicants for this scholarship; indeed I was probably the only one, which no doubt improved my odds of success. I’d studied law and history at the University of Adelaide and, apart from a natural predilection for research, I was anxious to delay induction into the Australian army - which it did until national conscription was abolished. Whether I could take up the scholarship depended on a department which was prepared to take me and provide a supervisor, but the Department of History, which seemed the natural home for me, said they weren’t interested. Fortunately Professor Dafydd Evans, the head of the Department of Law (then part of the Faculty of Social Sciences and Law) and an amateur historian, and probably keen to get a foreign PhD student (the study of law at post-war HKU was then just one year old), took me in. Originally there was to be joint supervision with the history people, which didn’t happen (although I had informal advice from Prof Len Young and Dr Alan Birch), and Dafydd Evans became my supervisor.

My first duty was to find a topic. I’d enjoyed undergraduate courses in Chinese history but lacked both any knowledge of Chinese and any talent for foreign languages. That’s why I was initially attracted to Hong Kong. And Professor Wang Gungwu, then at the Australian National University and much later Vice-Chancellor of HKU, had suggested I look at the New Territories (of which I’d never heard at the time). So I set about reading what I could about the New Territories - which was then mostly anthropological literature, all of it new to me and fascinating but of marginal value for my likely research. Gradually, over probably six months, a topic half-formed in my mind. In those days people were aware of the issue of 1997 in relation to the New Territories but they seemed to be in a state of denial, or assumed it was a matter to be addressed much later. I thought a study of the 99-year treaty of 1898 which was to expire in 1997 might in due course inform consideration of Hong Kong’s future. And it gave me the opportunity to look at both historical and legal matters.

Evans was a hands-off supervisor. He rightly couldn’t offer much expertise, and he was a busy Head; he allowed me to see what I could do with the topic, and, not wanting close supervision, I loved that freedom to explore the issues and material on my own. My research program first required me to go to London to look at Hong Kong files in the Public Record Office (now at Kew, then in Chancery Lane); this was many years before the main series of records was microfilmed and a copy lodged in the HKU library. Fortunately a small grant from the university assisted purchase of the ticket; my scholarship wasn’t exactly munificent. My principal interest was CO129, Governors’ despatches to the Colonial Office. Available were the original letter addressed to the Secretary of State, comments by the clerks (advisors), correspondence with other departments if necessary, and a draft of the reply. Through all this one could record the decisions made and trace the evolution of policy. I also looked at Foreign Office records and other series.

I took what notes I could and photocopied a lot (my luggage was way overweight on my return flight, but in those innocent days I could ask a stranger in the check-in line to take some of it and he readily complied). Then I spent some months analysing all the material I had and organising it into a collection of subjects, from which it emerged that I did indeed have a credible topic; it was then just a matter of doing extra research and writing it up. One more trip to London, to fill in gaps and inspect additional material, was needed, then sufficient time to produce a first draft. At about this point my scholarship funds ran out (where did those three years go and why so quickly?) and I was appointed to a lectureship in the law department, so frantic preparation for the new academic year took priority over thesis concerns. Meanwhile my supervisor read my draft and recommended I recast the narrative into a more chronological account. That was the task of the next summer. The thing was submitted later that year, the examiners looked favourably upon it, and the degree was awarded in 1976, the first PhD in law at HKU and the only one for many years, and I was the first lecturer in law to have a doctorate. So I suppose I was something of a pioneer.

Some comments:

(a) In 1970 the law department - then in the former police married quarters building in Caine Road (now demolished) - had no facilities for research students, and I had nowhere to keep my books and notes. When we moved to the Knowles Building on the main campus in 1973 again no provision - not even a library carrel - was made for full-time postgrad characters like me (to be fair, I was the only one, and by then I’d learnt to cope).

(b) I was probably older than the average PhD student, with six years of undergrad study behind me and a small dissertation already completed, so I think I was quite well prepared for full-time research.

(c) And I relished my supervisor’s lightness of touch. I would have chafed under pressure to submit work in progress or clear accounts of where I was going. Students with less self-confidence might want much closer supervision.

(d) There is an element of luck in completing research for a degree. One never knows in advance how it will turn out, and during the research and writing the dissertation may need to be topped and tailed to ensure that it’s neither too long nor too short, the argument (the “thesis”) is clear and coherent, the evidence is sound, and so on.

(e) The degree is a training exercise, so the thesis need not be near perfect. “An original contribution to knowledge worthy of publication”, which I think is the primary standard which must be met, sets the bar unrealistically high. Most dissertations need considerable revision and rewriting if they are to be published. My own work (which became Unequal Treaty) was initially rejected by a respectable academic publisher - though for somewhat silly reasons (the reader said something like “Why publish so much on such a small area as the New Territories?”).

(f) The whole exercise occupied one of the most enjoyable periods of my life. Many doctoral theses are done part-time in the course of a busy job, but I had no other duties for the first three years, not even a spouse, and I reveled in the process. There were doubts at times whether what I was doing would pass muster - but if research work is to be worthwhile there must be such uncertainties. When later I became a supervisor of PhD candidates I found that the process could be very forbidding for students not adequately prepared for it. If there’s no intellectual curiosity involved or intellectual satisfaction on finding answers to difficult questions, research for a degree can be a very painful exercise.

My thesis was eventually published as Unequal Treaty 1898-1997 (OUP 1980, revd 1998), it was generally well reviewed (with one or two horrific exceptions), and it sold quite well (the revised edition published in 1998 still sells a few copies each year). The book was relevant to the discussions which took place in the late 1970s and early 1980s on the future of Hong Kong: it was referred to by the British negotiators, and the Chinese government had it translated into Chinese and a hundred copies distributed to cadres involved in the negotiation process (no royalties were paid, of course). It no doubt underpinned my subsequent academic career, and it was excellent training for later research and writing. I look upon the dissertation and its subsequent publication, and process of researching and writing it, with much fondness. Written by Dr. Peter Wesley-Smith, Dean of the Faculty of Law from 1993 to 1996.

Nightfall descends upon Hong Kong’s lush country parks as a gentle breeze rustles the scented foliage that our city’s very name – the fragrant harbour – pays homage to. But, by dawn, all that remains of the trees are a scant scattering of stumps. An entire copse has been hacked away. The nighttime smugglers have already returned to the Mainland to trade these trees in a lucrative illegal market. This is the all-too-common fate of the Aquilaria sinensis(agarwood) tree – a tree that is highly sought after because, when infected with a specific fungus, it produces a resinous substance known as oud oil, which has a long history of medicinal use in many Asian cultures and is highly prized for its ambrosial fragrance. Gramme for gramme, oud oil is twice as valuable as gold.

However, the vicious cycle of its high value and perpetual illegal logging is leading the tree, which was once widely distributed across Hong Kong, to near extinction in the SAR. The oil’s value has increased 109 percent since 2005, with one gramme currently worth over $45,000 on the Mainland market. “The illegal trade of these trees in China is worth US$6 to $12billion ($40 to $90billion) a year,” says Gerard McGuirk, director of APC (Asia Plantation Capital), which owns over 120 sustainable agarwood plantations across Asia, including one in Hong Kong that currently houses 6,000 trees. Investors worldwide are – naturally – grappling to get their hands on this precious commodity, with buyers in mainland China willing to pay an exorbitant premium for the wood, but at what cost for Hong Kong’s natural habitat?...

So what is the government doing to protect these incense trees? “There’s a big problem with current legislation,” explains Amanda Whitfort, associate professor of law at HKU and wildlife advocate. When we ask a spokesperson from the AFCD (Agriculture, Fisheries and Conservation Department), he tells us that the department is in ‘close liaison with the police’ and ‘necessary enforcement actions against illegal felling of incense trees has been undertaken’. “We have stepped up patrol at locations within country parks and special areas to monitor the situation,” he continues. But Whitfort says this isn’t enough. “The authorities only send in their officers during daytime hours, and naturally, with the value of these trees, the gangs come in to chop them down at night or at dusk – at times when the country parks aren’t being policed by the authorities.”

The law sanctions that any person who fells, cuts or otherwise destroys these trees is liable to a maximum fine of $100,000 and 10 years’ imprisonment, and any person who ships the agarwood out of Hong Kong without a valid CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) permit is subject to a $500,000 fine and a year’s imprisonment. This threat of heavy prosecution should, in theory, deter from the illegal smuggling, but in reality there are very few reported cases of felling. “This is not because the smuggling is not occurring, but because the AFCD has prosecuted few cases,” explains Whitfort.. Click here to read the full article.

Friday, January 15, 2016

On 12 January 2016, CCPL launched the first in a three-part "Dialogue Series on Hong Kong's Constitutional Future". Associate Professor Benny Tai was joined by Martin Lee (Founding Chairman of the Democratic Party and Legislative Councillor from 1985 - 2008) and Joshua Wong (Fonder of Scholarism) for a discussion on the Future of Hong Kong's Democracy. The three speakers represented three generations in the quest for Hong Kong’s democracy and took the opportunity to debate avenues that could lead towards a more democratic future in Hong Kong.

Attending the event were members of the public, legal practitioners, academics and members of the Faculty of Law's staff, including CCPL Director Puja Kapai and Visiting Professor and former CCPL Director Andrew Byrnes. Photos from the event can be found on the Centre’s Facebook page at https://www.facebook.com/ccplhk and the video can be viewed at https://youtu.be/pigl967i724.

The Centre has long been involved with organising its Political Reform Seminar Series and this event marks the first of the year with more planned for 2016. The remaining two events in the series are as follows:

No. 3: A Dialogue on the Future of One Country Two SystemsDate: 15 March 2016Time: 18:00 p.m. - 19:30 p.m.Albert Chen (Professor, Faculty of Law, University of Hong Kong)Benny Tai (Associate Professor, Faculty of Law, University of Hong Kong)Brian Fong (Assistant Professor, Hong Kong Institute of Education)

Further details of the content and registration for these two events can be found on the CCPL website at http://www.law.hku.hk/ccpl/. For Suzanne Pepper's detailed report of the event published in Hong Kong Free Press, click here.

The fact that recent allegations of sexual abuse of four young girls in the Central African Republic by United Nations peacekeepers were not more widely publicised suggests, perhaps, the frequency of such allegations.

Sexual exploitation and abuse within UN peacekeeping missions is certainly nothing new: a 1992 report shows that soldiers attached to the United Nations Operation in Mozambique recruited girls aged 12-18 years into prostitution.

The report also found that in half of the 12 country studies conducted on child sexual exploitation and abuse in situations of armed conflict, the arrival of peacekeeping troops was associated with a rapid rise in child prostitution. Almost 25 years later, the UN Secretary-General still refers to it as

So is the UN unable to tackle this heinous practice, or simply unwilling? Perhaps it is both.

Where responsibility lies

UN peacekeepers are not - despite their name - employed directly by the UN but rather are members of their own national services seconded to work with the UN. This has important legal consequences.

Civilian staff of peacekeeping missions, who are also drawn from contributing countries, are liable to prosecution by the host state; military peacekeepers are not. Under article 47(b) of the Model Status of Forces Agreement, countries that contribute soldiers to UN missions have the responsibility to investigate and prosecute criminal conduct by their own soldiers. This document is used, with necessary modifications, as the basis for all peacekeeping operations.

This means that, technically, the UN is powerless to bring about criminal charges against them, despite the fact many of the charges are brought against them: 37 of the 61 sexual abuse allegations made in 2015 were against military personnel.

It is not difficult, then, to imagine how and why states may be able to avoid potential embarrassment by simply ignoring the allegations. Despite recent improvements, historically member state responses to UN follow-ups on prosecutions of the crimes has been abysmally low... Click here to read the full article.

Chief Executive Leung Chun-ying says Hong Kong will unilaterally withdraw from an international convention on torture “if it is needed”, sparking criticism that such a move would undermine the city’s standing in the world .

Leung’s unprecedented comments – which followed his announcement of a wholesale review of the current system for dealing with claims for refugee status and asylum in his policy address – are understood to have caused consternation among officials in the policy department responsible for such matters.

A source with a knowledge of the review said officials were “completely surprised and shocked” by Leung’s comments . It is also unclear how, if at all, Hong Kong can withdraw from an international convention given that it is not a sovereign state.

At a press conference after his address, Leung was asked by a journalist if the city needed to ditch its commitments under the United Nations Convention Against Torture.

Leung responded: “We will consider the issue from different aspects, such as law enforcement and the law itself. You asked if there is a need to quit the international agreement: if it is needed, we will do so.”

The reaction was swift with critics saying such a move would weaken human rights in the city at a time where Hongkongers are sensitive to any erosion of freedoms and rights, especially in light of the mystery surrounding missing booksellers.

Kelley Loper, director of the human rights programme in the faculty of law at the University of Hong Kong, said pulling out of the convention would send a signal that Hong Kong thinks it acceptable to torture people.

Puja Kapai, professor of law at the HKU and a former barrister at the High Court, said to withdraw from such an international treaty would have a major impact in the region. “It would cement the feeling that there are deliberate steps being taken to roll back on human rights in Hong Kong,” she said.

Human rights lawyer Mark Daly called the chief executive’s comments shocking and showed a “dangerous and irresponsible attitude”. He said: “This is unravelling human rights and the rule of law ... principles that make Hong Kong an international city.”

Hong Kong ratified the convention before the 1997 handover and China is also a signatory since 1986. Under the Immigration Ordinance, asylum seekers may lodge non-refoulement claims on grounds including torture, inhuman or degrading treatment or punishment, and persecution because of the convention.

Another HKU law professor, Michael Davis, said pulling out of the convention would mean no refuge for those who need it in the city, as Hong Kong is not under the UN Convention of Refugees.

In the policy address, Leung said there will be a comprehensive review of the strategy of handling non-refoulement claims, including a review of the Immigration Ordinance.

Experts have warned that Hong Kong cannot unilaterally pull out of the United Nations Convention Against Torture, after Chief Executive Leung Chun-ying raised eyebrows by declaring the city would do it “if needed”.

Rights groups are alarmed at the prospect of Hong Kong abandoning the treaty signed by 158 of 193 UN member states after Leung announced a comprehensive overhaul of the current system for dealing with refugee status and asylum to stamp out alleged widespread abuse.

“It would be an extreme measure – and very rare – for any state to withdraw from their commitments under international human rights law,” said Kelley Loper, director of the human rights programme at the University of Hong Kong’s Faculty of Law. Only China can withdraw from the convention, not Hong Kong on its own, Loper noted. “China would need to make the request on behalf of the state, not a particular part of the state,” she said. Loper pointed out that Beijing would have to give one year’s notice to the UN if it were to pull out. The convention also stipulates any commitments made before such a withdrawal must be met.

She also explained that even if the central government rejected the convention, Hong Kong’s Basic Law and Bill of Rights duties would still apply. “Hong Kong also has a duty not to return anyone to face a serious risk of torture or other forms of cruel, inhuman or degrading treatment or punishment under the International Covenant on Civil and Political Rights, which has been entrenched into Hong Kong domestic law,” she said.

Piya Muqit, executive director of Justice Centre, warned that if Hong Kong were to withdraw “it would join the ranks of repressive regimes such as Zimbabwe, the Central African Republic and North Korea”.

The controversy comes two months after the Committee Against Torture, which monitors implementation of the convention, expressed concern over the Hong Kong’s portrayal of “all claimants in need of protection as abusers of the system”.

The current system of screening asylum seekers started in March 2014, and there is a backlog of 10,922 cases , with 5,400 people having been screened so far. Chief Secretary Carrie Lam Cheng Yuet-ngor said yesterday the government receives around 400 new torture claims every month, with costs to taxpayers of HK$600 million a year.

Puja Kapai, professor of law at the University of Hong Kong and a former barrister at the High Court, said the chief executive’s declarations reflected the government’s short-sightedness. “When you discover abuse or loopholes in a system, you work to plug the gap. You do not throw out the baby with the bath water,” she said. Kapai also criticised the timing of Leung’s comments, in light of the missing bookseller mystery. She said “As we await news on the facts surrounding the disappearance of Lee Bo, such a withdrawal would foment further distrust and deepen paranoia harboured against the government.”

Hong Kong does not resettle asylum seekers, as it is not a signatory to the UN Refugee Convention, but is obligated to screen torture claims.

A government source said officials were shocked by Leung’s remarks, as it was not discussed with related law enforcement agencies. “We have never heard of it before. We also find the remarks contradictory to the policy address, as Leung just pledged to add manpower to speed up screenings of asylum claims,” the source said. The chief executive has left them puzzling over how to handle current torture claims.

More recently, Simon Young joined a panel on the RTHK 3 radio programme, Backchat, to discuss the issue on 16 March 2016. Click here to listen to the debate.

Tuesday, January 12, 2016

A lack of consensus should not delay legislating against discrimination based on sexual orientation, a Hong Kong law academic said on Monday.

Kelley Loper, an associate professor and the director of the human rights programme at the Hong Kong University's Faculty of Law, said lack of consensus points to a discrimination by some groups and warned that Hong Kong is way behind other places in anti-discriminatory laws.

Local LGBT groups were left disappointed on New Year's Eve when a government advisory body recommended "further study" of the idea of introducing anti-discrimination legislation.

The long-awaited report came ahead of the Equal Opportunities Commission's (EOC) plan to study the feasibility of legislating against discrimination on the ground of sexual orientation.

Loper said the EOC, which should push the government on this issue, has been weakened over the years. Click here to listen to the radio interview.

Sunday, January 10, 2016

Abstract: This article seeks to enrich our understanding of corporate law and private law. Deploying insights from the rights-based analysis in private law, this article argues that corporate law, in its instrumentalist conception, is unable to properly account for a defining feature of private law disputes, its bipolar structure consisting of the correlative and personality elements. Through a critical examination of certain corporate law cases, this article shows that the rejection of instrumentalist considerations by the rights-based thesis is unwarranted; it demonstrates how judges in private law disputes can accommodate instrumentalist considerations in a structured, coherent and restrained fashion. Click here to download the full article.

More than one in three employed people in Hong Kong have experienced some form of age discrimination in the last five years, a survey by the equality watchdog has found, prompting a call for legislation to ensure better protection.

The Equal Opportunities Commission said the survey had shown clearly there was sufficient support for the government to draft age discrimination legislation, as 70 per cent of respondents were “supportive” or “very supportive”.

“When it comes to legislation, the government always considers whether there is enough support from the public and lawmakers. Our survey has shown that 70 per cent of employed people in Hong Kong are supportive. That’s not a small number,” said Dr Ferrick Chu Chung-man, the watchdog’s director of policy, research and training.

The telephone survey of 401 employed people aged 15 or above was completed in November 2014 followed by additional in-depth interviews with bosses, employees and lawmakers last year...

Puja Kapai, an associate professor of law at the University of Hong Kong, said age discrimination was widespread in Hong Kong and warranted “urgent attention”.

“In theory, employers are free to make decisions taking age into consideration and this would not necessarily be unlawful,” she said.

She added: “It may still be a prohibition the court may be willing to recognise if a claim is brought in an appropriate case relying on the equality articles in the Basic Law or the Hong Kong Bill of Rights Ordinance.” Click here to read the full article.

A Hong Kong-based editor, who specializes in gossipy books about Chinese leaders, vanishes. His wife files a missing persons report with the police. She abruptly withdraws it after a faxed letter surfaces, apparently in her husband’s calligraphy, stating that he is in mainland China of his own volition, helping with an investigation. Hong Kong border officials have no record of his ever leaving.

The case of Lee Bo — Paul Lee is his English name — and his four missing colleagues has all the makings of an espionage thriller. But to many of the 7.2 million people in this former British colony, his disappearance and apparent surfacing across the border that demarcates Hong Kong from the rest of China have fueled a profound fear, by calling into question the legal guarantee that people here would be shielded until midcentury from Beijing’s reach under an arrangement known as one country, two systems...

“The latest suggestion that the publisher went to Shenzhen and was arrested for having prostitution in Shenzhen is a laughable and well-known Communist smearing tactic,” Johannes Chan, a former dean of the University of Hong Kong’s law faculty, wrote in an email. Click here to read the full article.

Causeway Bay is Hong Kong’s busiest, brashest retail district — think gilded Gucci storefronts, perfume clouds, and many, many mainland Chinese tourists — but Causeway Bay Books is tucked into a second-floor corner of a dingy building that also houses a pharmacist and a beauty salon called Person Nail. The narrow stairwell up from Lockhart Road is lined with printouts that will give you a good idea of the bookstore’s wares: the faces of Chinese President Xi Jinping and Mao Zedong feature prominently, though at least two advertisements are for Antoine de Saint-Exupéry’s Le Petit Prince.

Causeway Bay Books is also popular with mainland tourists, because many of the books it sells — tabloid tomes with lurid subject matter such as the sex lives of top Chinese Communist Party officials — are illegal north of the border that separates Hong Kong from China. But on Wednesday afternoon, the shop’s door had been bolted shut. There is nobody left to run it.

Five of the company’s employees have disappeared. A sixth employee told BBC correspondent Rupert Wingfield-Hayes that he was afraid he would vanish next.

The most recent disappearance was of the 65-year-old co-owner, a British man known as Paul Lee or Lee Bo, who was last seen at the company’s warehouse in Hong Kong on Dec. 30. (Four others, one of them a Swedish national, went missing while traveling overseas in October.) Lee called his wife Sophie Choi to tell her he was “assisting” an unspecified police investigation across the border in Shenzhen; Choi would later realize that his mainland travel permit, which Hong Kong residents must produce when crossing the border, was still at home. There is thus no official record of Lee leaving the city...

“If Lee was kidnapped off the streets of Hong Kong, it would clearly violate the Basic Law,” Michael Davis, an expert in Hong Kong and Chinese law at the University of Hong Kong, tells TIME. “It would show a disregard for the separation of the Chinese and Hong Kong legal systems, which the constitution guarantees.”... Click here to read the full article.

Abstract: Whilst different jurisdictions have yet to reach consensus on search engines’ liability for defamation, Internet giant Google is confronting judges and academics with another challenge: the basis of liability for defamation arising from its Autocomplete function. In 2014, for example, the Hong Kong Court of First Instance held that a claimant whose name was often paired with ‘triad member’ in Autocomplete had a good arguable case of defamation to proceed with and dismissed a claim of summary dismissal application made by Google in Dr Yeung Sau Shing Albert v Google Inc (Yeung v Google). Earlier, in 2013, the Federal Court of Germany held Google to be liable for violating a plaintiff’s personality rights and reputation for associating his name with ‘fraud’ and ‘Scientology’ in an Autocomplete search RS v Google).

The legal debate over the liability arising from the Autocomplete function captures the empowering and forbidding power of search engines. In examining the legal reasoning behind the Hong Kong case of Yeung v Google and German case of RS v Google, and comparing the two, this article argues that the orthodox approach to fixing responsibility for defamation, based either on the established English common law notion of publisher or innocent disseminator or the existing categories of passive host, conduit and caching in the relevant European Union Directive, is far from adequate to address the challenges brought about by search engines and their Autocomplete function. Whilst orthodox common law is strict in imposing liability in the case of a person’s participation in publication, and is fixated on identifying his or her state of knowledge and extent of control in the defamation action, the European Union approach is preoccupied with the over-simplified binary of seeing an intermediary as either an active or passive entity. The legal challenge posed by search engines, however, stems from the fact that they run on artificial intelligence. The legal issue should be redirected towards examining the possible role played by the algorithm creators in the content or result generated. Thus, this article argues that, in its Autocomplete function, Google indeed plays a unique role in contributing to defamatory content. Although the Hong Kong Court has not delivered any definitive answer on the role and liability of Google Inc., in a summary application, the German Court has rightly recognised the novel legal challenge that search engine prediction technology presents and treated search engines as a special intermediary processor. In the ‘search-in-progress’ of Autocomplete, Google is neither entirely active nor entirely passive, but rather interactive. Thus, imposing liability on Google in a defamation action based on its Autocomplete function is justified in a notice-and-takedown regime when a substantive complaint has been made. Click here to download the full chapter.

Almost two years since the last round of United Nations sanctions, North Korea has tested its first hydrogen bomb. The reaction from the UN Security Council, predictably, has been one of outrage, judging the test to constitute such a flagrant violation of UN sanctions and threat to peace and security that an emergency meeting was convened within three hours.

This frantic appeal to emotion elicits fear within the international community but overlooks one simple fact: Pyongyang has as much of a legal right to nuclear proliferation as any other state.

It is no coincidence that the five permanent members of the Security Council all possess nuclear weapons. Nor should it be overlooked that Japan – a current non-permanent member and convenor of numerous emergency meetings on North Korea – held sufficient weapons-grade plutonium in 2013 for an estimated 5,000 nuclear bombs.

UN Secretary General Ban Ki-moon speaks to the press in New York before a Security Council meeting about North Korea.

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) entered into force in 1970 with the aim of total prevention of nuclear weapon acquisition by non-nuclear weapon states. Despite the clear inequality of the subsequent creation of a nuclear-capable “members’ club”, 191 states have so far acceded, including North Korea in 1985. In 2003, when it withdrew from the treaty, it was – legally speaking – exercising its sovereign power... Click here to read the full article.

Before 19-year-old Chloe Wong entered a university in Hong Kong as a freshman, she was vulnerable and stressed after a messy breakup. She enrolled for a course taught by a “short, burly, hairy” man who also happened to be her academic advisor, requiring her to spend time with him regularly.

In class, the professor would often call upon her to read aloud, casually touch her shoulder and at times, look at her while teaching and stare at her legs. After Chloe’s first advising meeting with the professor in his office, he asked her for a kiss on the cheek, saying it was customary in his culture to kiss goodbye...

“In recent years, we became aware of a couple of inappropriate orientation activities that were highly sexualised,” said Puja Kapai, associate professor of law and equal opportunity advisor at HKU.

According to Kapai, there have been instances of sexually charged behaviour during mass orientation programs such as faculty level orientation activities. Field trips, late evening engagements and halls of residence also sometimes result in the greying of boundaries where colleagues, students, and neighbours take advantage of the opportunities for sexual harassment in a less formalised setting...

“We should know that there have been ‘x’ complaints received of which ‘y’ have been dealt with, and as a result, ‘z’ cases have resulted in disciplinary action or dismissal. We need to build a solid system that can make victims feel confident that these complaints are taken seriously and we are not quite there yet. Confidentiality is important but transparency is also important,” said Kapai... Click here to read the full article.